Opinion
No. CV 05 4000354 S
October 19, 2007.
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner, William Eastwood, has brought this amended habeas corpus petition alleging that his incarceration is illegal because his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and article first, section eight of the Connecticut constitution. The petitioner is presently in the custody of the Commissioner of Correction in the State of Connecticut.
The matter came before the court on April 26, 2007, for a trial on the merits. Witnesses called by the petitioner included the petitioner himself, Attorney Michael Blanchard, and Dr. Kenneth Selig. The state called Attorney David Toro, the petitioner's former trial and appellate attorney. The court ordered the parties to file post-trial briefs on or before June 29, 2007. Respondent's brief was filed with the court on June 25, 2007; petitioner's brief was filed on June 28, 2007. Based on the court's review of the testimony and evidence, judgment enters denying the habeas corpus petition.
FINDINGS OF FACTS
The petitioner was the defendant in State v. William Eastwood, Docket Number CR00-6-0495204 in the Superior Court, Judicial District of New Haven, wherein he was charged and convicted, after a jury trial, of three counts of attempt to commit kidnapping in the second degree in violation of general statutes sections 53a-49(a)(2) and 53a-94(a), three counts of risk of injury to a minor in violation of general statutes section 53-21(a)(1) and one count of interfering with a police officer in violation of general statutes section 53a-167a. In connection with this case the petitioner was represented by Attorney David Toro.
On June 19, 2002, the petitioner was sentenced by the court (Thompson, J.,) to nine years incarceration, followed by fifteen (15) years of special parole. Subsequently, the petitioner appealed his conviction (A.C. 23907). Attorney Toro, who had left private practice was appointed as a special public defender, represented the petitioner on his appeal. On June 22, 2004, the appellate court affirmed the lower court's judgment. See State v. Eastwood, 83 Conn.App. 452 (2004).
The facts that form the basis for the petitioner's convictions are summarized in the Appellate Court's decision, State v. Eastwood, supra, pages 454-56:
During the afternoon hours of October 16, 2000, the defendant drove in his van to Liberty Street in New Haven. He parked his van near a multifamily house where ten-year-old J, eleven-year-old R and twelve-year-old N, who are brothers, resided with their family. In the early evening hours, after the boys had returned home from school, R and N walked to a nearby market to purchase snacks. J received a quarter from his uncle and began walking toward the market to join his brothers. J was not wearing a shirt.
The defendant, who was sitting in the driver's seat of his van with the driver's window rolled down, observed J walking alone toward the market. The defendant called to J, saying, "little boy . . . come here, come here." J declined. The defendant then said to J, "come in this van," and indicated that he wanted to take him to Madison. When J again refused to approach, the defendant said, "when I take you, you're not going to tell your parents." The defendant told J, "don't make me come out of this van and grab you and kill you; you ain't gonna see your parents again." The defendant then opened the driver's door of his van and stepped out. The defendant threatened to kill J if he did not get into the van. J smelled alcohol on the defendant's breath, observed the defendant drinking from a square shaped bottle and observed through a window a mattress in the back of the van.
Frightened by the defendant, J ran to the market and told his brothers about his encounter with the defendant. Shortly thereafter, the three brothers left the market together. They soon encountered the defendant, who called to them. The defendant had spoken with R shortly before, asking him to go with him in his van. The defendant now asked the boys, as a group, to accompany him to Madison. J left the scene to get his uncle, who lived in his house. The defendant again asked R and N to get into the van so he could "take them somewhere." The defendant threatened to kill R and N if they did not get into the van. The defendant told R that he was not a stranger and that he was not dangerous. R refused to get into the van, telling the defendant, among other things, to leave him alone and that he was a stranger.
J summoned his uncle, telling him that "there is a guy that wants to take me to Madison; if I don't get in the car, he is going to kill me." The victims' uncle immediately walked to the van and asked the defendant what he wanted. The uncle had never met the defendant before and believed that the defendant was intoxicated. The defendant asked the uncle if he could take the boys to Madison. The uncle strongly refused, instructed his nephews to go back inside their house and dialed 911 on his cordless telephone.
The defendant, watching the boys' home, remained in his van until Gregory Catania, a New Haven police officer, arrived. The defendant disobeyed Catania's commands to exit the van. Catania opened the driver's door of the van, pulled the defendant out of the van and attempted to handcuff the defendant. The defendant resisted. A second police officer, Rosealee Reid, arrived and assisted Catania in handcuffing the defendant and placing him in the back of Catania's police cruiser. Catania placed the defendant under arrest.
The petitioner, in his amended petition, alleges that attorney Toro was ineffective in nine separate ways at the trial and at sentencing. The court finds, contrary to petitioner's assertions, that attorney Toro effectively represented petitioner.
DISCUSSION
"The petitioner's right to the effective assistance of counsel is assured by the sixth and fourteenth amendments to the federal constitution, and by article first, § 8, of the constitution of Connecticut. In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable . . .
"In [a court's] review [of alleged deficient performance], [it is] strongly presume[d] that counsel's professional assistance was reasonable, and the petitioner has the burden to overcome the presumption that his attorney was employing sound trial strategy . . . [Courts must] evaluate the conduct from trial counsel's perspective at the time . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal citations and quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376-77, cert. denied, 275 Conn. 920 (2005).
"It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 799, cert. denied, 268 Conn. 907, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
1. Trial counsel made no assurances regarding evidence to the petitioner.
Petitioner alleges that Toro assured him that certain documents seized by the police from petitioner's van would not be admitted at trial against petitioner. Petitioner further alleges that he did not accept the state's pretrial offer of settlement because he relied on that assurance. According to petitioner, he would have accepted the state's offer if he had known the documents would be entered into evidence.
Pursuant to a search warrant, the police seized a typewritten journal authored by the petitioner that outlined his desire to engage in sexual relationships with young boys and contained graphically detailed descriptions of sexual encounters between the defendant and young boys. The state offered the journal as evidence of petitioner's motive or intent to commit the offenses. After Toro's unsuccessful efforts to prevent the journal from coming into evidence, the journal became a full exhibit and approximately thirty to thirty-five pages were read aloud to the jury to facilitate moving the trial forward in an expedient manner. Although Toro was unsuccessful in preventing the journal from being entered into evidence, he nevertheless also strove, albeit unsuccessfully, from having the prosecutor read the journal excerpts to the jury.
The petitioner testified that Attorney Toro assured him that certain of the petitioner's personal writings would not be introduced into evidence during the trial. Attorney Toro denied having given the petitioner such assurances. Attorney Toro told his client that he would fight to keep the journal out. The court credits the testimony of Attorney Toro and does not credit petitioner's testimony. The evidence before this habeas court clearly shows that Attorney Toro made every effort to either keep the journal entirely out of evidence or minimize its impact when entered into evidence. Petitioner has not show deficient performance by Attorney Toro or the resultant prejudice. The first basis for ineffective assistance of counsel is without merit.
2. Trial counsel was not ineffective in connection with his motion to suppress.
The petitioner alleges that Attorney Toro was ineffective for relying on lack of probable cause as the basis for the motion to suppress the fruits of the search of the petitioner's van. Attorney Toro sought to suppress the items found in the petitioner's van, including the petitioner's journal. The trial court denied the motion. The issue was raised on direct appeal. There, the Appellate Court found no merit to the petitioner's contention.
Attorney Blanchard, the petitioner's legal expert, testified that there was no attempt to attack the warrant based upon a Franks v. Delaware argument. In Franks v. Delaware, 438 U.S. 154, 155-56 (1978) the United States Supreme Court held that a defendant may challenge the truthfulness of an affidavit supporting a search warrant, provided that the defendant has made a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit.
Here, there is no evidence that the police officers who sought the search warrant made any false statements knowingly or with disregard for the truth. Petitioner's claim must, therefore, be denied.
3. Trial counsel was not ineffective regarding the van window.
The petitioner testified before this court that the driver's side window to his van was inoperable at the time of the alleged offenses and that his attorney failed to present such evidence to the jury. This evidence, the petitioner alleges, would tend to discredit the testimony of the state's witnesses. The petitioner contends that because Attorney Toro failed to present such evidence to the jury, Attorney Toro's representation was deficient.
The petitioner has the burden of showing how the defective window would have helped in his defense to the charges. Attorney Toro testified that the inoperable window was a minor issue. There was other evidence that the van door was open, which tended to prove the witnesses' ability to see inside the van and to hear the petitioner's conversation. Furthermore, Attorney Toro several times during closing argument emphasized the discrepancies in the witnesses' testimony regarding the window, and argued that their testimony was not credible in part due to such discrepancies. See Respondent's Exhibit D (Tr. April 16, 2002), at 32-42.
This court must apply a strong presumption that Attorney Toro's decision to highlight the discrepancies in the minor witnesses' testimony was reasonable. Petitioner has not rebutted that strong presumption by showing Attorney Toro's was not sound trial strategy. Even if petitioner had made this showing, he has failed to undermine this court's confidence in the outcome of the criminal trial. Thus, this claim of ineffective assistance of counsel is also denied.
4. Expert testimony regarding dreams/fantasy was unnecessary.
The petitioner testified that Attorney Toro was ineffective because he failed to call an expert during the petitioner's trial to guide the jury in distinguishing between dreams/fantasy and the intent to commit the crimes charged. The petitioner called Dr. Kenneth Selig, an expert, who testified that dreams are an unconscious process and that a person's fantasies are conscious thoughts that represent desires or wishes that one my have, but that these desires or wishes that form the basis for fantasies may not be played out in reality. The understanding of dreams and fantasies were within the common knowledge of jurors and did not require expert testimony to help distinguish them from the required showing of intent borne by the state.
The trial court gave the jurors a limiting instruction after the petitioner's journal was admitted into evidence. The jurors were instructed by the court that the journal could only be considered by them on the issues of the petitioner's motive and intent. Dr. Selig testified that if a person memorialized his dreams and intermingled those memorializations with conscious desires, those writings could be indicative of motive and intent. Petitioner's journal entries appear to be precisely such an intermingling of dreams/fantasies and conscious desires.
The petitioner has not affirmatively shown to this court that Attorney Toro rendered deficient performance for not presenting expert testimony on the distinction between dreams/fantasy and intent to commit the crimes charged. Petitioner has also not undermined this court's confidence in the outcome of the trial.
5. The failure to impeach Rosa Crudup with her felony convictions did not amount to ineffective assistance of counsel.
Rosa Cudup testified that her children, the victims, did not know the petitioner. Her testimony also helped identify the children's residence and the location of the petitioner's van in relation to the residence. Additionally, she on cross examination by Attorney Toro testified that when she arrived home, the police were on the scene and the petitioner's van was being towed. Rosa Crudup's testimony, if anything, underscores that she did not witness any of the events that occurred which resulted in the charges brought against the petitioner. Attorney Toro testified that he decided not to impeach Crudup with her felony convictions because Crudup's testimony offered little by way of evidence. The petitioner here has not demonstrated how undermining Crudup's credibility by way of impeachment through her felony convictions in any way would have benefited the defense. Consequently, Attorney Toro could not have rendered deficient performance as alleged and petitioner was not prejudiced.
The court notes that Rosa Crudup's entire testimony spans twelve pages. See Respondent's Exhibit C (Tr. April 11, 2002), at 20-32.
6. Defense attorney adequately cross-examined the state's witnesses.
The petitioner has failed to identify specifically where attorney Toro was deficient in his examination of the witnesses. Attorney Toro testified that his examination of the witnesses was adequate. After reviewing the transcripts, this court, which is not here to review the cross examination and gauge whether it was sufficient or not, agrees nonetheless with Toro's testimony that his cross examination was adequate. The claim premised on inadequate cross examination is without merit.
7. Petitioner knowingly and voluntary waived the right to testify.
The petitioner testified that he was not properly advised by Attorney Toro on whether to testify at his trial. The trial court, Thompson, J., thoroughly canvassed him on the record. Moreover, after a portion of the trial transcript was read to him, the petitioner acknowledged that he had understood his decision not to testify at his trial.
Attorney Toro testified that he advised the petitioner not to testify after he discussed the issue at length with the petitioner. Attorney Toro testified that he told the petitioner not to testify because of certain information that the petitioner conveyed to Attorney Toro. Finally, Attorney Toro informed the petitioner that the decision was the petitioner's on whether to testify. The court credits Attorney Toro's testimony.
The court finds that the claim borders on the frivolous because it is without any credible evidentiary support whatsoever.
8. The petitioner waived sentence review.
The petitioner alleges that attorney Toro was ineffective because he failed to file an application for sentence review. Attorney Toro advised the petitioner that if he filed for sentence review, his sentence could be increased. The petitioner decided not to proceed with sentence review. The court fails to see how Attorney Toro was ineffective by advising petitioner of the potential risk of a sentence increase and petitioner then, after the consultation with counsel, opting not to pursue sentence review. The court finds this claim also is without merit.
CT Page 17197
9. Counsel was not ineffective for failure to seek certification to the Supreme Court.
The petitioner alleges that Attorney Toro failed to seek certification to the Supreme Court and therefore, was ineffective in representing the petitioner. This allegation applies to Toro as petitioner's appellate counsel and not as petitioner's trial defense counsel.There is no right, constitutional or statutory, to review by our highest court. General Statutes § 51-197f. Practice Book § 84-2 indicates that certification to our Supreme Court on petition is not a matter of right, but of discretion. In Gipson v. Commissioner of Correction, 257 Conn. 632 (2001), our Supreme Court held that an indigent criminal defendant has the right to the assistance of counsel in connection with the filing of a petition for certification. However, here, the petitioner has neither articulated the issues worthy of further review for seeking certification of his case to our Supreme Court, nor has he attempted to indicate how such issues, if articulated, would warrant the granting of such discretionary petition for certification to the Supreme Court.
Based on the foregoing, the court concludes that Attorney Toro did not render deficient performance by not filing a petition for certification with the Supreme Court. Petitioner has also not shown how he was prejudiced.
CONCLUSION
Based on all the foregoing, the writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.